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The Hague Visby Rules

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The Hague Visby Rules - 1 - The Hague Visby Rules CHAPTER 1 APPLICATION OF THE RULES GENERALLY I. Introduction The Hague Rules1 were adopted in 1924, the Hague/Visby Rules in 19682 and 19793 and the Hamburg Rules4 in 1978. Each international convention in turn attempted to broaden its application in order to avoid lacunae, to encompass all contracts of carriage as well as bills of lading, and to permit incorporation by reference. This chapter deals with the application of the three sets of rules. While the Hamburg Rules are in force in about twenty-six countries, the Hague Rules or the Hague/Visby Rules are presently in force in most of the world's shipping nations. Some nations such as France have two international regimes. They apply the Hague Rules to shipments from a Hague Rules nation and the Hague/Visby Rules to all outbound shipments. Belgium applies the Hague/Visby Rules inbound and outbound5 and the United States applies COGSA (the Hague Rules)6 in the same way. Some nations7 have a national local law for internal shipments which is similar but not identical to the Hague Rules or the Hague/Visby Rules.8 Finally, some nations such as the United States have a local law for inland traffic and after discharge and before loading, which is unique to them.9 The problem is further complicated by the method of adoption of the Rules. Some nations such as Canada10 and Australia11 have enacted a local statute to which is attached the Hague/Visby Rules as a schedule, but Canada and Australia have neither acceded to nor ratified the original 1924 Convention adopting the Hague Rules and therefore cannot be considered as “contracting states”. Some countries such as France ratify conventions and such ratification makes the convention law.12 Finally, some countries, particularly in South America, have never ratified or acceded to the 1924 Convention or the 1968 or 1979 Protocols13 or the Hamburg Rules, nor have they adopted equivalent national legislation. Nevertheless, it is generally the practice in those countries to incorporate COGSA or the Hague Rules or the Hague/Visby Rules by reference into the bill of lading.14 The purpose of this chapter is to consider the application of the various Conventions under as many practical circumstances as possible. - 1 - - 2 - II.The Hague Rules 1)The general principle of application The general principle regarding the application of the Hague Rules is that they apply by their own force (ex proprio vigore) to contracts of carriage covered by a bill of lading or any similar document of title. Art. 2 and the definition of “contract of carriage” in art. 1(b) makes this clear: “Art. 2 - Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth. ”Art. 1(b) -'Contract of carriage' applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charterparty from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.” 2) Paramount clauses and the Hague Rules Art. 10 of the Hague Rules states: “The provisions of this Convention shall apply to all bills of lading issued in any of the contracting States.” Most national laws invoking the Hague Rules stipulate that the bill of lading shall contain a paramount clause. Sect. 13, para. sixth, of COGSA15states: “Every bill of lading, or similar document of title issued in Canada that contains or is evidence of any contract to which the Rules apply shall contain an express statement that it is to have effect subject to the Rules as applied by this Act.” Even if the bill of lading does not contain a paramount clause, the Rules still apply. This seems manifestly clear from the Hague Rules themselves and was so declared in Shackman v. Cunard White Star Ltd.16 If the bill of lading does not contain a paramount clause and does not invoke the Hague Rules but invokes some other law, the Hague Rules still apply. The contrary decision of the Privy Council in Vita Food Products Inc. v. Unus Shipping Co. Ltd. (The Hurry On)17 is in error.18 - 2 - - 3 - Fortunately, Vita Food is limited in its application and itself contains the source of its being distinguished - the Court stating that whether or not the Hague Rules will be given effect depends on where the case is tried. For example, if the Vita Food case had been tried in Newfoundland, where the bill of lading was issued, then the Hague Rules would have applied. As Lord Wright himself stated: “A Court in Newfoundland would be bound to apply the law enacted by its own Legislature ... ”19 This has permitted the Vita Food decision to be distinguished, and authors have evolved principles of their own as to when the Hague Rules apply.20 The principles are roughly to the effect that the Hague Rules will apply in almost every case, the main exception being where a bill of lading was issued in a contracting state, which bill of lading invoked English law and did not contain a paramount clause, and the case was tried in England. Fortunately, the decision of the Privy Council in Vita Food has not been followed.21 A paramount clause is no longer required under the Visby Rules because they specifically apply by force of law as if they were directly enacted as part of statutory law.22 III.The Visby Rules 1)A brief history of the Visby Rules The Visby Rules (the Brussels Protocol of 1968 amending the Brussels Convention of 1924) were the outcome of the successful deliberations of the Comité Maritime International Conference in Stockholm in 1963, where changes to the Brussels Convention of 1924 were adopted. The Comité met in the historic City of Visby after the Conference and thereby gave the Visby Rules their name. Included in the Visby Rules was the (“Muncaster Castle Amendment”), a proposed amendment to art. 3(1) of the Hague Rules which would have allowed carriers to be relieved of their obligation to exercise due diligence to make the vessel seaworthy provided they diligently chose a reputable independent contractor to do the work.23 The Muncaster Castle Amendment (a quite retrograde provision)24 was discarded at the Diplomatic Conference subsequently held and, eventually on February 23, 1968, a Protocol was signed at Brussels amending the Hague Rules.25 By March 23, 1977, ten nations (sufficient in number and tonnage, as stipulated in art. 13 of the Brussels Protocol of 1968, to bring the Protocol into effect) had ratified or acceded to the Rules and therefore three months later, on June 23, 1977, the Visby Rules came into force for - 3 - - 4 - the United Kingdom, France, Denmark, Norway, Sweden, Switzerland (all of whom had ratified), and Ecuador, Lebanon, Singapore and Syria (all of whom had acceded). Since that date the vast majority of the world's shipping nations have adopted the Visby Rules.26 2) Hague/Visby Rules - a single document The Visby Rules (the Brussels Protocol of February 23, 1968) should not be considered as a separate convention. The Visby Rules are amendments to the Brussels Convention 1924 and art.6 of the Protocol stipulates: “As between the Parties to this Protocol the Convention and the Protocol shall be read and interpreted together as one single instrument. A Party to this Protocol shall have no duty to apply the provisions of this Protocol to bills of lading issued in a State which is a Party to the Convention but which is not a Party to this Protocol.” Thus the result of ratification of or accession to the Visby Protocol by a nation is that the nation consents to be bound by the Hague/Visby Rules.27 3) Visby Rules - force of law The Visby Rules attempt to overcome the problem created by the Vita Food Products v. Unus Shipping Co.28 decision, where the Hague Rules were not deemed by an English Court to have the force of law and were held to have effect more by agreement than law in the absence of a paramount clause. Sect. 1 of the former U.K. statute giving effect to the Hague Rules (the Carriage of Goods by Sea Act, 1924) and sect. 2 of the former Canadian statute giving effect to the Hague Rules (Carriage of Goods by Water Act, 1936) read only: “shall have effect in relation to and in connection with ... ” certain carriage. The Visby Rules, on the other hand, would seem to give much more authority to the application of the Rules by their wording. Thus, art. 10 of Hague/Visby stipulates that: “Each Contracting State shall apply the provisions ... ”, while national legislation giving effect to the Visby amendments, such as the U.K.'s Carriage of Goods by Sea Act, 197129, in four different subparagraphs, specifically gives the Hague/Visby Rules “the force of law” - sects. 1(2), (3), (6) and (7).30 In short, if the contract of carriage falls within one of the cases set out in art. 10 of the Hague/ Visby Rules, then the Rules must apply whatever be the proper law of the contract.31 Other national statutes are to the same effect.32 - 4 - - 5 - 4) Paramount clause - Visby Rules It is interesting to note that a paramount clause is no longer necessary under the Visby Rules because the Rules apply by force of law.
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